Case 100229

The Senior Investigator found that the HSE is justified in its decision to refuse access to the withheld records on the basis that they are exempt from release under section 23(1)(b) of the FOI Act.

Case Summary

Whether the HSE is justified in its decision to refuse a request, made under section 7 of the FOI Act, for access to records held by the HSE on the basis that the records are exempt from release under various provisions of the FOI Act.

Date of Decision: 21.11.2011

Review Application to Information Commissioner under the Freedom of Information (FOI) Acts 1997 & 2003

Background:

The Community Welfare Service of the HSE received an FOI request from the applicant's solicitors on 10 March 2010; the request was to be provided  with "a full copy of any file that you hold in relation to him ". The Community Welfare Service administers the Supplementary Welfare Allowance scheme and the file requested related to the applicant's claim under the Supplementary Welfare Allowance scheme.

In its decision of 24 March 2010 the HSE granted the request in part, releasing some records and refusing others.The HSE provided a schedule of the records covered by the request which showed that 14 of the records were being refused. The HSE relied on section 26(1)(a) of the FOI Act as the grounds for its refusal of the withheld records. The applicant's solicitors applied for internal review of that decision on 15 April 2010. In applying for internal review, the applicant's solicitors explained that the applicant believed that a particular person (named in the internal review application) had been spreading "disinformation" about the applicant and that the applicant was anxious to know if the Community Welfare Service had received "any correspondence or communication" from that person in relation to the applicant. The solicitors stated that it was the applicant's intention "to issue proceedings against this individual if he can obtain the necessary evidence". It was clear that the FOI request, and the internal review application, were being pursued in the context of possible legal proceedings.

In its internal review decision of 13 May 2010 the HSE affirmed its original decision to refuse access to the withheld records; on this occasion, in addition to relying on  section 26(1)(a) as the grounds for refusal, it relied also on sections 23(1)(a) and (b), and 21(1) of the FOI Act. The applicant applied to this Office on 27 September 2010 seeking a review of the HSE's decision.

In the course of the conduct of this present review, and at the suggestion of this Office, the HSE released seven of the withheld records.

Ms Anne O'Reilly an Investigator from this Office wrote to the applicant's solicitors on 22 February 2011 setting out her preliminary view that the HSE's decision was likely to be affirmed by the Commissioner or her delegate. Ms O'Reilly's preliminary view was that the release of the remaining seven records would lead to the disclosure of the identity of a person(s) who had given information to the Community Welfare Service of the HSE and that for this reason the records were exempt from release under section 23(1)(b) of the FOI Act. A further submission was received from the applicant's solicitors on 7 April 2011. The application was also the subject of a telephone discussion between Fintan Butler, Senior Investigator in this Office, and the applicant's solicitors on 4 May 2011.

Preliminary Matters

In conducting this review I have had regard to the applicant's request, the decisions of the HSE, the contents of the records at issue, the applicant's correspondence with the HSE and his correspondence with and detailed submissions to this Office. I have had regard also to certain clarifications provided by the HSE to this Office in the course of the review. Finally, I have had regard to the provisions of the FOI Act.

Before dealing with the exemptions claimed by the HSE,  I must point out that section 8(4) of the FOI Act specifically prohibits a decision maker, "subject to the provisions of this Act", from having regard to any reason the applicant may have for making the request for access.

I also wish to make the point that, while I am required by section 34(10) of the FOI Act to give reasons for decisions, this is subject to the requirement of section 43(3) that I take all reasonable precautions during the course of a review to prevent disclosure of information contained in an exempt record. This means that the description which I can give of  the records at issue is somewhat limited. The withheld records relate to information provided to the HSE which suggest possible welfare fraud by the applicant; the records identify the informant(s). I understand that the applicant has been advised by the HSE of the substance of the allegations made against him. The HSE has informed this Office that, having investigated the applicant's case in response to the information provided, it "confirmed that the claimant was entitled to payment at that time".

Conducted in accordance with section 34(2) of the FOI Act by Fintan Butler, Senior Investigator, who is authorised by the Information Commissioner to conduct this review.

Scope of Review

The sole issue in this review is whether or not the HSE is justified in its decision to refuse access to the seven remaining withheld records (Nos. 49,50,53,54,57,58 and 59 on schedule of records provided by the HSE) on the basis that they are exempt from release under the provisions of the FOI Act.

Submissions

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Findings

In its internal review decision, the HSE relied on sections 26(1)(a), 23(1)(a),  23(1)(b) and 21(1) to withhold the records sought by the applicant. In the circumstances of this case it appears that the provisions of section 23(1)(b) are most relevant to the records.

Section 23(1)(b)

"23(1) A head may refuse to grant a request under section 7 if access to the record concerned could, in the opinion of the head, reasonably be expected to ...

(b) reveal or lead to the revelation of the identity of a person who has given information to a public body in confidence in relation to the enforcement or administration of the civil law or any other source of such information given in confidence".

In order for this exemption to apply, three specific requirements must be met:

1. release of the withheld details could reveal, whether directly or indirectly, the identity of the supplier of the information;
2. the information in the record was given in confidence; and
3. the information was supplied to the public body in relation to the enforcement or administration of the civil law.

First Requirement

Having examined the records in question, I find that their release would reveal the identity of the person(s) who gave the information to the HSE; therefore, I find that the first requirement of the exemption is met.

Second Requirement

In relation to the second requirement, the issue is whether the information was given to the HSE in confidence. It is clear to me that it is necessary for HSE officials, in the course of their duties, to be in a position to receive relevant information in confidence from members of the public. The HSE has argued that much relevant information is received in confidence from people who do not wish to be identified. It has argued that, if people providing information to the HSE in such cases were not reassured as to confidentiality, the information gathering process would be compromised by the withholding of such information. Such information is used in the investigation of possible abuses of the social welfare schemes including Supplementary Welfare Allowance. The HSE has also stated that it is essential for the control of expenditure that such information continues to be received and that the release of records, such as the records in question in this case, would prejudice the giving of further similar reports, which would lead to a lower level of detection of abuses of the social welfare system.  I accept that, without an assurance or understanding that the information provided was being provided in confidence, such persons may be reluctant to provide the information.

In this particular case, the HSE contends that the information was given to it in confidence, and that it is its normal procedure to accept such information in confidence. From my examination of the records it is clear that the person(s) involved indicated that they did not wish their identity to be made known and the HSE has stated that it accepted the information on a confidential basis. Accordingly, I find that the second test of the exemption is satisfied.

The applicant has said that he believes that the information was given maliciously by a named individual and that it is his intention to issue court proceedings against the informant if he can verify that person's identity. Malicious allegations, which are known to be false, cannot be regarded as having been made in good faith and it is difficult to see how, in such circumstances, they could be regarded as having been made in confidence. It is also arguable that where information known to be false is given maliciously, with the intent of causing injury or distress and without assisting the enforcement or administration of the civil law, section 23(1)(b) should not apply. However, where information or an allegation proves to be unfounded, this does not, by itself, undo the confidential basis on which the HSE receives such information.

In order to make a finding that the informant was motivated by malice, some substantive evidence would be required. In the present case, the HSE has informed this Office that "there is no evidence to support the view that the information provided was made maliciously or in bad faith". In order to reach a conclusion that there was malice involved, strong clear evidence would be required. The submissions and supporting materials provided by the applicant's solicitors do not provide me with a sufficient basis for concluding that the information was given maliciously. I am unable to expand on this as to do so might result in the disclosure of information contained in an exempt record and I am required by section 43 of the FOI Act to "take all reasonable precautions" to prevent such a disclosure.  It seems to me that in this particular case there is no way of knowing whether the allegations were made maliciously or not. On the face of it, the information given was supplied to the HSE in confidence and meets the second requirement of section 23(1)(b) of the FOI Act.

Third Requirement

Finally, at the time in question the HSE administered the Supplementary Welfare Allowance scheme on behalf of the Department of Social and Family Affairs and, in that context,  was responsible for enforcing social welfare regulations and investigating possible abuses. Accordingly, I find that the information given does relate to the enforcement or administration of the civil law. On this basis I find that the third requirement of section 23(1)(b) has been met.

The Public Interest

However, that is not the end of the matter as section 23(3) provides that section 23(1)(b) does not apply in certain specified circumstances where the public interest would, on balance, be better served by granting than by refusing to grant the request.  It is important to note that the public interest balancing test in section 23(3) differs from the public interest balancing test which exists in other exemptions in that the test in section 23(3) may be considered only where certain specified circumstances arise.  Those circumstances are where the record in question discloses that an investigation is not authorised by law or contravenes any law, or it contains information concerning the performance by a public body of functions relating to law enforcement or contains information concerning the effectiveness or merits of any programme for prevention, detection or investigation of breaches of the law.  I am satisfied that no such circumstances arise in this case and that section 23(3) does not apply.  On this basis, all of the requirements for the application of section 23(1)(b) have been satisfied.

I find, therefore, that under section 23(1)(b), the HSE is justified in its decision to refuse access to the withheld records

As I find that the records in question are exempt from release under the provisions of section 23(1)(b) of the FOI Act it is not necessary for me to consider any other exemptions claimed by the Health Service Executive.

Decision

Having carried out a review under section 34(2) of the Freedom of Information Act 1997, as amended, I hereby affirm the decision made by the HSE in this case.

Right of Appeal

A party to a review, or any other person affected by a decision of the Information Commissioner following a review, may appeal to the High Court on a point of law arising from the decision. Such an appeal must be initiated not later than eight weeks from the date on which notice of the decision was given to the person bringing the appeal.

Fintan Butler

Senior Investigator

21 November 2011